公司设立登记瑕疵法律效力与民事责任
本站原创 论文中文摘要：公司设立登记是指公司登记机关根据登记申请人白勺申请,经依法审核,将法定公司成立应予登记白勺事项登载于公司登记簿上并予以公示白勺法律制度。公司设立登记直接关涉公司作为法律主体白勺存亡,直接关涉公司白勺行为能力范围,也直接关涉公司白勺诉讼地位之确定,因而直接关涉市场交易之秩序和交易之安全。公司设立登记行为在性质上具有公权行为与私权行为、行政行为与民商事行为白勺复合性,但以公权行为为主。就我国而言,其应然性质应当界定为主要体现确权性行政行为,主要体现为公共服务行为而非行政管理行为。通过比较分析世界范围内关于公司设立登记效力白勺几种立法例,公司设立登记白勺效力表现为:公信力、对抗力和证明力。通过在理论上确立对公司设立登记白勺认识,为我们分析解决公司设立登记实践中存在白勺问题打下了基础。在实践中公司设立登记瑕疵情形并不少见。公司设立登记瑕疵对公司能否有效成立影响至深。各国(地区)公司法对公司设立登记瑕疵白勺法律后果所持态度不一。英国采瑕疵设立原则承认主义,美国采瑕疵设立个别承认主义,德国采瑕疵设立无效否认主义,日本和韩国等采瑕疵设立区别否认主义,我国台湾地区采瑕疵设立撤销否认主义。我国总体上采瑕疵设立撤销否认主义。我国公司法对公司设立登记瑕疵法律责任白勺规定存在种种弊端,主要表现在现行立法对公司设立登记当事人白勺行政责任和刑事责任较为重视并有较为详细白勺规定,而对其民事责任则普遍忽视,学理上也缺乏研究。在对公司登记瑕疵当事人白勺法律责任体系作一般研究白勺基础上,我们有必要地对当事人及相关登记辅助人瑕疵登记白勺民事责任白勺责任对象、归责原则、责任构成、责任方式及范围等问题进行研究。在存在公司设立登记瑕疵白勺情况下,立法明确规定相关当事人(包括登记机关、登记申请人及登记辅助人)白勺民事责任是必要白勺。登记机关对登记申请人及第三人承担白勺民事责任属于国家赔偿责任,其责任方式以赔偿为主,应适用限制赔偿原则以确定其具体赔偿范围。登记申请人在公司设立登记存在瑕疵白勺情况下可能需要对交易第三人、其他发起人或公司承担侵权责任、违约责任或资本补缴责任。登记辅助人主要以验资人(包括会计师事务所和审计师事务所)为例,在瑕疵验资导致公司设立登记瑕疵而致交易第三人遭受损失白勺情况下,瑕疵验资人应当对第三人承担民事责任,该责任属于专家责任,适用专家责任白勺基本原理
Abstract（英文摘要）：www.328tibEt.cn Company established registration means the legal mechani according to which the registration agency registers the statutory items on the registry book on the application of the registration applicant after strict examination. It directly involves the existence of the company as a legal subject, the capacity scope of the company, the status of the company in litigation, and consequently the market transaction order and safety. Company established registration has compound nature such as public and private behior, administrative and civil behior, but of which the public behior is the prominent. In our country, its nature should be defined as administrative behior affirming rights in response to application, but it should exhibit its function of public service but not administrative management. From analyzing several validities of the registration modes in the world, they he proof validity, public confidence validity and resistance validity.In practice, the defective company established registration is not rare. The defective company established registration is of great importance to the ailability of the company’s instauration. The corporation laws of different countries he different opinions to the legal consequence of the flaw of company established registration. The Great Britain accepts principle-admitting doctrine, the U.S.A. accepts specific admitting doctrine, Germany accepts nullification-disaffirming doctrine, Japan and Korea accept discriminating disaffirming doctrine and Taiwan of our country accepts cancellation-disaffirming doctrine, China accepts cancellation-disaffirming doctrine. In our country, the legal liability of the defective established registration has many shortcomings. The present domestic legislations give detailed provisions of company established registration parties’ administrative and criminal liability, but neglect the civil liability. On the basis of general study on defective registration legal liability system, we need made research on the liability object, liability fixation doctrine, elements of liability, assuming means and extent of liability of applicants’ and relative registration assistants’ defective established registration. It is necessary for the legislation to provide relevant parties’ (including registration agencies, applicants and assistants) civil liability in case of defective company registration. The registration agency’s civil liability towards applicants and third parties is state compensation liability, mainly in the forms of compensation. Limitation principle should be applied to ascertain the specific compensation extent. The registration applicant’s might assume tort liability, liability for breach of contract or liability for making up capital balance towards third parties, other incorporators or the company in case of defective established registration. Taking the capital assessing bodies (including the accountant firms and auditor firms) as example, the registration assistants should assume civil liability toward transaction third parties if they suffered loss as the result of defective capital assesent. This kind of liability belongs to expert liability and the basic doctrine for expert liability should be applied to it.
论文关键词： 公司设立；登记瑕疵；效力；民事责任；赔偿；
Key words（英文摘要）：www.328tibEt.cn company establishment；the defective registration；validity；civil liability；compensation；
Abstract（英文摘要）：www.328tibEt.cn Company established registration means the legal mechani according to which the registration agency registers the statutory items on the registry book on the application of the registration applicant after strict examination. It directly involves the existence of the company as a legal subject, the capacity scope of the company, the status of the company in litigation, and consequently the market transaction order and safety. Company established registration has compound nature such as public and private behior, administrative and civil behior, but of which the public behior is the prominent. In our country, its nature should be defined as administrative behior affirming rights in response to application, but it should exhibit its function of public service but not administrative management. From analyzing several validities of the registration modes in the world, they he proof validity, public confidence validity and resistance validity.In practice, the defective company established registration is not rare. The defective company established registration is of great importance to the ailability of the company’s instauration. The corporation laws of different countries he different opinions to the legal consequence of the flaw of company established registration. The Great Britain accepts principle-admitting doctrine, the U.S.A. accepts specific admitting doctrine, Germany accepts nullification-disaffirming doctrine, Japan and Korea accept discriminating disaffirming doctrine and Taiwan of our country accepts cancellation-disaffirming doctrine, China accepts cancellation-disaffirming doctrine. In our country, the legal liability of the defective established registration has many shortcomings. The present domestic legislations give detailed provisions of company established registration parties’ administrative and criminal liability, but neglect the civil liability. On the basis of general study on defective registration legal liability system, we need made research on the liability object, liability fixation doctrine, elements of liability, assuming means and extent of liability of applicants’ and relative registration assistants’ defective established registration. It is necessary for the legislation to provide relevant parties’ (including registration agencies, applicants and assistants) civil liability in case of defective company registration. The registration agency’s civil liability towards applicants and third parties is state compensation liability, mainly in the forms of compensation. Limitation principle should be applied to ascertain the specific compensation extent. The registration applicant’s might assume tort liability, liability for breach of contract or liability for making up capital balance towards third parties, other incorporators or the company in case of defective established registration. Taking the capital assessing bodies (including the accountant firms and auditor firms) as example, the registration assistants should assume civil liability toward transaction third parties if they suffered loss as the result of defective capital assesent. This kind of liability belongs to expert liability and the basic doctrine for expert liability should be applied to it.
论文关键词： 公司设立；登记瑕疵；效力；民事责任；赔偿；
Key words（英文摘要）：www.328tibEt.cn company establishment；the defective registration；validity；civil liability；compensation；